United States District Court, N.D. New York
August 16, 2005.
COVON MARTIN, a child under the age of 18 years by his mother and guardian Kim Martin; and KIM MARTIN mother and guardian of Covon Martin; Plaintiffs,
RICHARD W. MOSCOWITZ, M.D., Defendant.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
This medical malpractice action was brought pursuant to
28 U.S.C. § 1332 on behalf of the minor plaintiff Covon Martin
("Covon") by his mother plaintiff Kim Martin ("Mrs. Martin"). A
jury trial was held November 29, 2004, through December 3, 2004,
in Utica, New York. The jury rendered a verdict in favor of defendant Richard
W. Moscowitz, M.D. ("Moscowitz") and judgment was entered
accordingly. More specifically, the jury found that Moscowitz was
not negligent in the care and treatment of Covon's left hip. It
also found that there was a lack of informed consent with regard
to the left hip, but that consent would still have been given if
the appropriate information had been disclosed. The jury found
that Moscowitz was not negligent in the care and treatment of
Covon's right hip. It then found that although there was a lack
of informed consent with regard to the right hip surgery and
given appropriate information consent would have been denied, the
lack of informed consent was not a substantial factor in causing
injuries to Covon.
Plaintiff now renews his motion for judgment as a matter of law
pursuant to Fed.R.Civ.P. 50 and moves to set aside the verdict
pursuant to Fed.R.Civ.P. 59 with regard to the jury's finding
that the operation on Covon's right hip was not a substantial
factor in causing unnecessary injuries to him. Defendant opposes.
The motion was taken on submission without oral argument.
Covon suffered from slipped capital femoral epiphysis ("SCFE").
Moscowitz first diagnosed SCFE in Covon's left hip, on February
1, 1999, when Covon was thirteen years old. SCFE occurs when the
growth plate in the hip (which has not yet solidified) causes the
femoral head to slip, causing joint pain. Treatment for this
condition consists of surgically placing one or more pins or
screws in the hip to prevent additional slippage. Positioning of
the pins or screws must be carefully monitored to prevent, or in
the case of pin/screw migration to correct, any penetration of
the pin/screw beyond the femoral head and into the hip joint.
Such penetration causes cartilage damage and can lead to
chondrolysis (destruction of the smooth joint surface) and permanent joint
malfunction, as well as other adverse effects.
Two types of hardware are available to fixate the hip in a
patient suffering from SCFE. Knowles pins have a pointed end, are
solid, and are placed directly without predrilling of the bone.
Multiple Knowles pins are required to accomplish a fixation.
Fluoroscopic x-rays are used during surgery to direct pin
placement and to assure that the Knowles pins are properly
placed. That is, x-rays must be reviewed to determine whether the
pointed end of any Knowles pins penetrate past the femoral head
into the cartilage of the hip joint. Because the x-rays are not
three dimensional, it is somewhat difficult to determine whether
pin penetration has occurred. Further, post-surgical monitoring
of joint range-of-motion and pain is necessary because of the
possibility that a Knowles pin penetrated into the joint
cartilage, undetected during surgery, or migrated into the joint
cartilage post-surgery. Knowles pins were the hardware of choice
for SCFE fixation until the middle 1980s, when the cannulated
screw was developed.
The cannulated screw is hollow with a blunt end. Placement of a
cannulated screw requires a pre-drilled channel. Because the
flat-tipped, broader cannulated screw holds more firmly, only one
or two cannulated pins are required to accomplish fixation.
Again, fluoroscopic x-rays are used during surgery to facilitate
proper pin placement. The flat tip design and more central
placement of the cannulated screw in the femoral head permits a
greater margin of safety between the end of the screw and the
cartilage, resulting in much less possibility of penetration than
with the Knowles pin. The wider end also makes penetration of the
femoral head more difficult. Additionally, the hollow core of the
cannulated screw permits the introduction of dye after placement
to assure that no penetration has occurred. If penetration is noted, it can be corrected
immediately while the patient is still in surgery. Moreover,
because the cannulated screw holds more firmly it is less likely
to migrate with the passage of time.
Moscowitz performed surgery on Covon's left hip on February 17,
1999. Moscowitz used three Knowles pins to fixate Covon's left
hip. After the surgery fluorographic x-rays were taken. Moscowitz
interpreted the x-rays and determined that there was no pin
penetration. Four days later a radiologist reviewed the x-rays
and opined that two pins were penetrating.
At the time of the surgery Moscowitz informed Covon and Mrs.
Martin that he should expect mild discomfort for three weeks
postoperatively. However, Covon complained of continued pain,
and, on May 28, 1999, Moscowitz performed a second operation on
Covon's left hip. During this second surgery, Moscowitz removed
one pin that was penetrating and backed off three turns on a
Thereafter Covon developed pain and limited range-of-motion in
his right hip. Moscowitz again diagnosed SCFE. He performed a
surgical procedure on August 18, 1999, to stabilize the right
femoral head. He used four Knowles pins in the right hip. Covon
again complained of pain and limited range of motion beyond the
three-week recuperative period Moscowitz predicted. Finally, on
September 30, 1999, Moscowitz referred Covon for a second
Thereafter, Covon consulted Dr. James Schneider ("Schneider").
Schneider determined that two of the four Knowles pins were
penetrating. On November 4, 1999, he surgically removed the
offending pins from Covon's right hip. Schneider also has
diagnosed Covon with chondrolysis, synovitis, and degenerative
arthritis. Covon's condition will worsen over time, and he will need, at the least, a total hip
replacement of the right hip. He has been advised to delay having
the hip replaced for as long as possible, because a hip
replacement will last only ten to fifteen years and therefore
would have to be repeated in his lifetime.
A. Rule 50 Judgment as a Matter of Law
In considering a motion for judgment as a matter of law, the
evidence must be considered in the light most favorable to the
non-movant, and all inferences must also be drawn in the
non-movant's favor. Nimely v. City of New York, 414 F.3d 381,
___, 2005 WL 1620481, at * 6, (2d. Cir. 2005). Conflicting
evidence cannot be weighed and the witnesses' credibility cannot
be judged. Id. The judgment of the jury cannot be supplanted.
Id. The motion may be granted only where there was "no legally
sufficient evidentiary basis for a reasonable jury to find" in
the non-movant's favor. Fed.R.Civ.P. 50(a); Nimely,
414 F.3d at ___, 2005 WL 1620481, at *6. That is, the motion may not
properly granted unless "there is `such a complete absence of
evidence supporting the verdict that the jury's findings could
only have been the result of sheer surmise and conjecture, or
such an overwhelming amount of evidence in favor of the movant
that reasonable and fair minded men could not arrive at a verdict
against [the moving party].'" LeBlanc-Sternberg v. Fletcher,
67 F.3d 412, 429 (2d Cir. 1995) (alteration in original) (quoting
Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)).
B. Rule 59 Motion for a New Trial
On a motion for a new trial, "the trial judge is free to weigh
the evidence himself and need not view it in the light most
favorable to the verdict winner." Bevevino v. Saydjari,
574 F.2d 676, 684 (2d Cir. 1978). Independent judgment may be
exercised despite the existence of evidence which supports the jury's verdict.
Nimely, 414 F.3d at ___, 2005 WL 1620481, at *8. However, the
mere fact that the trial judge may not agree with the jury's
verdict is no reason alone to grant a new trial. Mallis v.
Bankers Trust Co., 717 F.2d 683, 691 (2d Cir. 1983). Grant of a
new trial is warranted only where the court "`is convinced that
the jury has reached a seriously erroneous result or that the
verdict is a miscarriage of justice.'" Sorlucco v. New York City
Police Dep't, 971 F.2d 864, 875 (2d Cir. 1992) (quoting Smith
v. Lightning Bolt Produc., Inc., 861 F.2d 363, 370 (2d Cir.
C. Substantive Law Lack of Informed Consent
A prima facie case based upon lack of informed consent may be
established by proof that the defendant failed to inform the
plaintiff of the risks involved and that a reasonably prudent
person in plaintiff's position would not have had the surgery if
she had been informed of the risks (accompanied by expert
testimony as to the risks a reasonable medical practitioner under
similar circumstances would have disclosed). Alberti v. St.
John's Episcopal Hosp.-Smithtown, 116 A.D. 2d, 612, 612 (N.Y.
Sup. Ct. App. Div. 2d Dep't 1986) (citing N.Y. Pub. Health L. §
2805-d). Additionally, evidence must establish that "a reasonably
prudent person in the patient's position would not have undergone
the [surgery] if he had been fully informed." N.Y. Pub. Health L.
§ 2805-d(3) (McKinney's 2002). Finally, the lack of informed
consent must be a proximate cause of plaintiff's injury. Id.
Plaintiff seeks to set aside the verdict on the informed
consent issue with regard to Covon's right hip to the extent that
the jury found that the operation of August 18, 1999, was not a
substantial factor in causing unnecessary injury. The jury
preliminarily found that Moscowitz failed to provide appropriate
information to Mrs. Martin prior to obtaining her consent for the August 18, 1999, surgery. The jury further found
that had she been given the appropriate information, a reasonably
prudent person in Mrs. Martin's position would not have consented
to the surgery. However, the jury then determined that the
operation of August 18, 1999, was not a substantial factor in
causing Covon unnecessary injury. Thus, the jury verdict in favor
of defendant was based solely upon proximate causation.
The essence of plaintiff's informed consent case at trial was
that Moscowitz should have explained to Mrs. Martin that a newer
technique utilizing the cannulated screw, from which there were
significantly less adverse side effects, was available to fixate
SCFE. The jury's response to the first question on this issue,
that Moscowitz failed to obtain informed consent from Mrs.
Martin, demonstrates that it found that she should have been
informed about the availability of the cannulated screw, and the
higher risk of adverse side effects with the Knowles pin. The
answer to the next question, that Mrs. Martin would not have
consented to the surgery with the Knowles pins had she known
about the availability of the cannulated screw technique,
necessarily must have led to either of two subsequent
circumstances: (1) Mrs. Martin would not have permitted any
surgery at all to be performed, or (2) Mrs. Martin would have
consented to surgery using the cannulated screw technique.
Comparison between the two potential subsequent occurrences and
the actual occurrence (of Covon's surgery using Knowles pins)
will show whether Covon suffered any unnecessary injury.
First, if Mrs. Martin would not have permitted any surgery at
all, then Covon necessarily would have suffered unnecessary
injury the August 18, 1999, hospitalization; surgery; and
recuperation. Were this the case, then no reasonable jury could
reach the conclusion that there was no unnecessary injury, and
plaintiff would be entitled judgment as a matter of law. See Fed.R.Civ.P. 50. However, the
alternative upon which the jury could have based its finding of
no proximate cause must be considered.
The second potential scenario presents a more difficult
question. The evidence adduced at trial on this issue follows.
Campbell's Operative Orthopedics (hereinafter "Campbell's"),
a medical textbook Moscowitz consulted prior to Covon's first
surgery, related a study showing that up to fifty-one percent of
the time chondrolysis developed after pin penetration. (Moscowitz
Nov. 29, 2004, Trial Tr. at 69-70.) Campbell's stated that the
recommended treatment of choice was fixation with a single
cannulated screw. Id. at 70. Campbell's also related other
studies conducted at multiple pediatric orthopedic centers
throughout the United States showing zero occurrence of
chondrolysis with the use of a single cannulated screw to fixate
SCFE. Id. at 71. In fact, the cannulated screw was developed in
the early 1980s to reduce the incidence of unrecognized pin
penetration at the time of surgery. Id. at 72. However, another
study set forth in Campbell's reported that three of the
ninety-seven children in the study developed chondrolysis.
(Moscowitz Nov. 30, 2004, Trial Tr. at 80.) Based upon all "the
published studies . . . the incidence of chondrolysis was reduced
from as much as fifty percent of the cases in which there was pin
penetration, down to as low as two and three percent, and in
some, even zero percent." Id. at 91.
Additionally, reducing the number of pins used from three or
four with the Knowles pin to one with the cannulated screw
reduced the chance that a pin would violate the integrity of the
cartilage (and thus reducing the incidence of chondrolysis).
See id. at 15. In sum, there was a multi-hundred percent
reduction in the percent of incidence of chondrolysis following
pin penetration with the use of the cannulated screw, compared
with use of the Knowles pin.*fn1 (Moscowitz Nov. 29, 2004, Trial Tr. at 73.)
Campbell's also related a study of 114 hips, finding only 4.6
percent of hips with a single pin had complications, while 36
percent of those with multiple pins had complications. (Moscowitz
Nov. 30, 2004, Trial Tr. at 88.)
Another advantage of the cannulated screw is increased grasping
strength, meaning that the screw will not move in either
direction. (Moscowitz Nov. 29, 2004, Trial Tr. at 77.) Moscowitz
saw no evidence of chondrolysis in Covon's left or right hip
prior to the respective surgeries. Id. at 83-84.
Prior to Covon's surgery on August 18, 1999, Moscowitz
diagnosed a mild, stable slip as to the right hip. (See
Moscowitz Nov. 30, 2004, Trial Tr. at 30-32.) A study set forth
in Campbell's found that mild slips treated with a single
cannulated screw obtained satisfactory results, with no
chondrolysis occurring. Id. at 32. A review of studies of
pinning hips that were mild revealed virtually no "current
evidence of chondrolysis occurring with the use of the cannulated
screw in relationship to a fairly high incidence of chondrolysis
occurring with the Knowles pinning." (Polisner Trial Tr. at 46.)
Additionally, the studies showed that if a penetration was
discovered during surgery and that pin was immediately backed
out, there was no incidence of chondrolysis. Id. The inference
drawn from these studies results was that a pin had to "be
penetrating for more than a few minutes in order for the
chondrolysis to occur." Id. at 47. After surgery to fixate a SCFE, a child should not have
symptoms beyond about two weeks. Id. at 51. The normal
post-operative course would be one-third pain free after three or
four days, two-thirds pain free after an additional three or four
days, and completely pain free after two and a half weeks at the
longest. Id. at 56. Progressive weight bearing is then
permitted allowing for a gradual weaning from the use of
crutches. Id. Normally a child is completely free of "crutches
and well healed and comfortable by four to six weeks." Id. Any
pain beyond about two weeks is "absolutely not normal" and must
be investigated to determine if there is a complication, the most
common of which is a pin penetration. Id. at 51-52.
Moscowitz indicated to Covon and Mrs. Martin that by three
weeks post-operatively he should be experiencing only mild
discomfort. (Moscowitz Nov. 30, 2004, Trial Tr. at 6-7.) After
his surgery on August 18, 1999, Covon complained of continuing
pain and reduced range of motion on September 13, 1999. On
September 30, 1999, about six weeks post-operatively, Covon was
still experiencing considerable pain with any motion at all.
Id. at 59. A pin penetrating the joint cartilage can cause
At that juncture, Covon consulted with a different orthopaedic
specialist, who determined that two of the Knowles pins in
Covon's right hip were penetrating the cartilage. Surgery was
performed in early November 1999 to remove the two penetrating
pins. Covon now has chondrolysis and degenerative arthritis in
his right hip, accompanied by pain and limited range of motion.
Viewing the evidence most favorable to Moscowitz, as must be
done when evaluating a Rule 50 motion for judgment as a matter of
law, and refraining from weighing the evidence and witness
credibility, it is evident that there was "no legally sufficient evidentiary basis for a reasonable jury to find" that no
unnecessary injury resulted to Covon from the August 19, 1999,
surgery. See Fed.R.Civ.P. 50(a); Nimely, 414 F.3d at ___,
2005 WL 1620481, at *6. If the jury determined that Mrs. Martin
would not have consented to any operation, all the evidence
establishes that the surgery itself was unnecessary injury
suffered by Covon, and there was no evidence to the contrary.
Furthermore, if the jury determined that she would have
consented to surgery with the cannulated screw, the overwhelming
amount of evidence that Covon suffered at least some unnecessary
injury would prevent a reasonable and fair minded person from
arriving at a verdict against Covon. See LeBlanc-Sternberg,
67 F.3d at 429. There was overwhelming evidence that a normal
recovery would be had in just a few weeks, after which the
patient would be pain free. Use of the Knowles pins carried the
risk of pin penetration (and pain), whereas use of a cannulated
screw virtually foreclosed continued pin penetration.
Additionally, the evidence was overwhelming that continued pin
penetration caused chondrolysis, a permanent painful condition,
and that chondrolysis would not occur in a mild slip, such as
Covon's, with either fixation by cannulated screw or no surgical
treatment. Accordingly, plaintiff is entitled to judgment as a
matter of law.
Even if the evidence could be considered legally sufficient to
support the verdict under Rule 50, plaintiff would clearly be
entitled to relief under Rule 59. Consideration of all the
evidence as set forth above establishes that a finding that Covon
suffered no unnecessary injury as a result of the August 18,
1999, surgery is seriously erroneous, as well as a miscarriage of
justice. See Sorlucco, 971 F.2d at 875. Use of Knowles pins
left open the possibility that pins would penetrate and not be
discovered until some later time. The possibility of continued
penetrating pins is non-existent with the cannulated screw
technique for a number of reasons, not the least of which is that dye is
injected during surgery so that proper placement can be confirmed
prior to the end of surgery. Checking for the proper placement in
this manner permits the correction of an improper placement
(i.e., penetration) in just a few minutes time. Covon had
additional time for recovery and unusual pain during the recovery
period due to the penetrating pins. An additional surgery was
required to remove the penetrating pins, causing additional
injury. Finally, a jury could easily conclude that Covon's
chondrolysis and degenerative arthritis, a permanent painful and
debilitating condition that will require additional surgeries in
the future, was caused by performance of the surgery on August
18, 1999, using Knowles pins. Accordingly, plaintiff is also
entitled to relief pursuant to Rule 59.
In light of the jury's findings that informed consent was
lacking with regard to the surgery on Covon's right hip and that
consent would not have been given had Mrs. Martin been properly
informed, its finding that the operation of August 18, 1999, was
not a substantial factor in causing unnecessary injury to Covon
cannot stand. Considering the evidence in the light most
favorable to Moscowitz, making all inferences in his favor, and
not weighing conflicting evidence and witness credibility, there
is not a legally sufficient evidentiary basis for a reasonable
jury to find in Moscowitz's favor. There was such an overwhelming
amount of evidence in favor of Covon that reasonable and fair
minded jurors could not have found that no unnecessary injury
resulted from performing the surgery with Knowles pins. Plaintiff
is entitled to judgment as a matter of law. Further, relief
pursuant to Rule 59 is warranted because, giving due
consideration to all of the evidence, the jury reached a
seriously erroneous result and the verdict is a miscarriage of
justice. Accordingly, it is
1. Plaintiff's motions for judgment as a matter of law and for
a new trial are GRANTED;
2. The judgment is VACATED; and
3. A new trial on the issue of the amount of damages to be
awarded to Covon Martin as a result of the lack of informed
consent relating to his right hip will be held.
IT IS SO ORDERED.